Citation NR: 9635910
Decision Date: 12/17/96 Archive Date: 12/24/96
DOCKET NO. 95-07 113 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to an increased rating for bilateral
nephrolithiasis, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Daniel R. McGarry, Associate Counsel
INTRODUCTION
The veteran had active service from September 1970 to
February 1973.
This matter came before the Board of Veterans’ Appeals
(Board) on appeal from a rating decision in which the
regional office (RO) denied entitlement to an increased
rating for bilateral nephrolithiasis.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his disability from nephrolithiasis
has worsened. He asserts that that he has “kidney stone
attack” at least twice per year and that his renal disorder
requires that he maintain a special diet and take medication.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the grant of an increased rating for
bilateral nephrolithiasis.
FINDING OF FACT
The record contains no current medical evidence that the
veteran’s nephrolithiasis requires diet therapy, drug therapy
or invasive or non-invasive procedures more than two times
per year, nor does the record contain medical evidence that
the veteran’s renal disorder is manifested by frequent
attacks of colic requiring catheter drainage.
CONCLUSION OF LAW
The criteria for a schedular rating in excess of 10 percent
for bilateral nephrolithiasis have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7,
4.10, 4.115b, Diagnostic Codes 7508, 7509 (1995).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran has presented a well-grounded claim for increased
disability evaluation for his service-connected disability
within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); cf.
Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992) (where
veteran asserted that his condition had worsened since the
last time his claim for an increased disability evaluation
for a service-connected disorder had been considered by the
Department of Veterans Affairs [VA], he established a well-
grounded claim for an increased rating). The Board is
satisfied that all appropriate development has been
accomplished and VA has no further duty to assist the veteran
in developing facts pertinent to his claim. The veteran has
not advised VA of the existence of addition evidence which
may be obtained.
Disability evaluations are based upon the average impairment
of earning capacity as contemplated by a schedule for rating
disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part
4 (1995). Although VA must consider the entire record, the
most pertinent evidence, because of effective date law and
regulations, is created in proximity to the recent claim.
38 U.S.C.A. § 5110 (West 1991).
VA utilizes a rating schedule which is used primarily as a
guide in the evaluation of disabilities resulting from all
types of diseases and injuries encountered as a result of or
incident to military service. The percentage ratings
represent, as far as can practicably be determined, the
average impairment in earning capacity resulting from such
diseases and injuries and their residual conditions in civil
occupations. Generally, the degrees of disability specified
are considered adequate to compensate for considerable loss
of working time from exacerbations or illnesses proportionate
to the severity of the several grades of disability. 38
U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1995). It is
essential, both in the examination and in the evaluation of
disability, that each disability be viewed in relation to its
history. 38 C.F.R. § 4.1 (1995).
Service medical records show that the veteran was
hospitalized in June 1972 with a diagnosis of left renal
calculi. He had complained of nausea for six months. He
also complained of back pain. While in the hospital, he had
severe left flank pain accompanied by nausea and vomiting and
subsequently passed a stone. X-rays revealed the presence of
bilateral renal calculi. On discharge, he continued to have
complaints of occasional nausea and occasional back pain.
The final diagnoses included bilateral renal calculi.
The veteran was granted entitlement to service connection for
bilateral nephrolithiasis by a May 1973 rating decision in
which the RO awarded a disability evaluation of 10 percent
pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7508. The 10
percent rating has been in effect since 1973. Under
Diagnostic Code 7508, nephrolithiasis is rated as
hydronephrosis, except where the veteran has recurrent stone
formation requiring diet therapy, drug therapy; or invasive
or non-invasive procedures more than two times per year. In
the excepted circumstances, a disability rating of 30 percent
is assigned. Hydronephrosis is rated utilizing Diagnostic
code 7509. Hydronephrosis productive of only an occasional
attack of colic and no infection and not requiring catheter
drainage is rated as 10 percent disabling. A 20 percent
evaluation is assignable where there are frequent attacks of
colic requiring catheter drainage.
Aside from the report of VA examination dated in May 1973,
the only medical evidence in the file consists of clinical
reports of the veteran’s private physician. Those reports
indicate that the veteran underwent a left ureterolithotomy
in December 1975. The record contains no evidence that the
veteran has undergone any other invasive or non-invasive
procedures to treat his nephrolithiasis. Although the
veteran asserts that his renal disorder requires diet
therapy, the recently dated clinical notes of his private
physician do not mention such therapy. The most recently
dated reference to dietary treatment for nephrolithiasis was
made in December 1982, when the veteran’s physician
recommended that the veteran continue a low calcium oxide
diet. Earlier clinical notes indicate treatment with Naqua.
The veteran’s physician stated in a June 1992 request for
fee-basis outpatient treatment that he was treating the
veteran twice yearly for ureterolithiasis, including “. . .
oral medication of Mepergan for pain and HCTZ, Capoten, or
Naqua.” However, the doctor’s clinical records indicate that
recent treatment has been for disorders and illnesses
unrelated to the veteran’s service connected disabilities.
Such records show that HCTZ and Capoten were prescribed for
hypertension. There is no indication that Naqua has been
prescribed recently for treatment of nephrolithiasis.
The veteran’s private treatment records indicate that during
the 1980’s, several radiological studies of the veteran’s
kidneys, ureter and bladder (KUB) were conducted. In
September 1985, although there was still a calcification in
the area of the upper pole calices on the right measuring
about two to three millimeters in diameter, the study showed
no significant change from the previous year. KUB film
obtained in July 1988 revealed no abnormal calcifications in
the genitourinary tract. The evidence of record contains no
indication of subsequent KUB radiological studies.
The Board has reviewed the entire record and finds no medical
evidence that the veteran’s nephrolithiasis currently
requires diet therapy, drug therapy or invasive or non-
invasive procedures more than two times per year. Nor does
the record contain medical evidence that the veteran’s renal
disorder is manifested by frequent attacks of colic requiring
catheter drainage, or infection, or impairment of kidney
function. Therefore, the Board concludes that the criteria
for a schedular rating in excess of 10 percent have not been
met.
In reaching its decision, the Board has considered the
complete history of the disability in question as well as the
current clinical manifestation and the effect the disability
may have on the earning capacity of the veteran. 38 C. F. R.
§§ 4.1, 4.2, 4.41 (1995). The Board has also considered the
provisions of 38 C.F.R. § 4.7, which provide for assignment
of the next higher evaluation where the disability picture
more closely approximates the criteria for the next higher
evaluations. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. In the absence of current medical
evidence that the veteran’s renal disorder requires diet
therapy, drug therapy, or invasive or noninvasive procedures
more than two times per year, and without evidence that he
has more than occasional attacks requiring catheter drainage,
the veteran’s disability from bilateral nephrolithiasis, as
discussed above, does not approximate the criteria for the 20
or 30 percent schedular evaluations.
In exceptional cases where schedular evaluations are found to
be inadequate, consideration of “an extra-schedular
evaluation commensurate with the average earning capacity
impairment due exclusively to the service-connected
disability or disabilities” is made. 38 C.F.R. § 3.321(b)(1)
(1995). The governing norm in these exceptional cases is: A
finding that the case presents such an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards. Id.
The Board first notes that the schedular evaluations in this
case are not inadequate. A 10 percent evaluation
contemplates an occasional attack of colic, not infected and
not requiring catheter drainage. A higher rating is provided
for frequent attacks of colic requiring catheter drainage or
nephrolithiasis requiring diet therapy, drug therapy, or
invasive or non invasive procedures more than twice yearly,
but the record lacks current medical evidence that reflects
that those manifestations are present in this case.
Second, the Board finds no evidence of an exceptional
disability picture in this case. The veteran has not
required hospitalization for his renal disorder. Nor is it
shown that he requires frequent treatment or that the
disorder markedly interferes with employment. The Board
notes that there is no evidence that the impairment resulting
solely from the bilateral nephrolithiasis, by itself,
warrants extra-schedular consideration. Rather, for the
reasons noted above, the Board concludes that the impairment
resulting from bilateral nephrolithiasis adequately
compensated by the 10 percent schedular evaluation.
Therefore, extraschedular consideration under 38 C.F.R.
§ 3.321(b) is not warranted in this case.
The veteran did not report to the VA examination scheduled
for him in May 1994. In his January 1995 notice of
disagreement, he expressed his desire to cancel the VA
examination which was scheduled for several days later. It
is important to note that the veteran’s failure to report for
a current VA examination pursuant to the RO’s request would,
of itself, be a basis for denial of his claim. 38 C.F.R.
§ 3.655 (1995).
ORDER
An increased rating for bilateral nephrolithiasis is denied.
JOAQUIN AGUAYO-PERELES
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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